Moore, Aaron Jacob

PD-1634-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/8/2015 6:01:02 PM
June 9, 2015 Accepted 6/9/2015 8:48:55 AM
ABEL ACOSTA
NO. PD-1634-14 CLERK

IN THE COURT OF CRIMINAL APPEALS
STATE OF TEXAS

AARON JACOB MOORE, Appellant

VS.

STATE OF TEXAS, Appellee

No. 01-13-00663-CR
IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

CAUSE NO. 12-DCR-059791
IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS

STATE'S BRIEF ON THE MERITS

John F. Healey
District Attorney, 268th Judicial District
Fort Bend County, Texas

C. Alexandra Foley
Assistant District Attorney

Gail Kikawa McConnell
SBOT #11395400
Assistant District Attorney
301 Jackson Street
Richmond, Texas 77469
(281) 341-4460 / (281) 238-3340 (fax)

Counsel for the State
 IDENTITY OF THE PARTIES AND COUNSEL

The Courts

Hon. Jeffrey A. McMeans Juvenile Court Judge
County Court at Law No. 2
Fort Bend County, Texas

Hon. Clifford J. Vacek former District Court Judge
400th Judicial District Court (retired September 30, 2014)
Fort Bend County, Texas

For Appellant, Aaron Moore

Kirby J. Taylor Attorneys in the Juvenile Court
4810 Caroline Street
Houston, Texas 77004-5608

Tommy James Stickler, Jr. Attorney in the District Court
235 Sealy Street
Alvin, TX 77511

Carmen Roe Attorney on Appeal
440 Louisiana, Suite 900
Houston, Texas 77002

i
For the State

John F. Healey, Jr. District Attorney, 268th Judicial District
301 Jackson Street Fort Bend County
Richmond, TX 77469

C. Alexandra Foley Assistant District Attorney in the
301 Jackson Street Juvenile and District Courts
Richmond, TX 77469

Gail Kikawa McConnell Assistant District Attorney on Appeal
301 Jackson Street
Richmond, TX 77469

ii
 TABLE OF CONTENTS

IDENTITY OF THE JUDGES, PARTIES, AND COUNSEL. . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . x

QUESTION GRANTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

Does the court of appeals’s construction of “the state” in Section
54.02(j)(4)(A), Family Code require dismissal of a case with prejudice
without consideration of the factors for oppressive delay in violation of
the separation of powers doctrine?

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The court of appeals combined the investigatory function of law
enforcement agencies with the litigation function of the
prosecution in construing “the state” for the purposes of Family
Code, Section 54.02(j)(4)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The court of appeals failed to consider whether the investigative
delay was oppressive before vacating the judgment. . . . . . . . . . . . . . 8

C. The Due Process Clause protects juvenile offenders from
oppressive investigatory delay in the prosecution of their cases. . . . . 9

iii
 D. The Texas Constitution explicitly provides for the separation of
governmental powers. The Legislature encroached on the duty of
the District Attorney to prosecute cases by requiring dismissal
with prejudice without first considering whether the delay was
unconstitutional.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. The Texas Constitution authorizes the Legislature to make
procedural rules for the government of the courts; not
substantive rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. Rather than providing guidelines for the speedy filing of a
petition, Section 54.02(j)(4)(A) is directed at speeding up
the state’s filing of a petition without regard to
investigatory delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3. Section 54.02(j)(4)(A) deprives the prosecutor of his
exclusive prosecutorial discretion in preparing for trial in
violation of the Separation of Powers Clause. . . . . . . . . . . . . 16

E. The undisputed evidence shows that the delay was not an
intentional device used to gain a tactical advantage over the
accused and no Due Process violation is shown. . . . . . . . . . . . . . . . 18

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPENDIX A: Copy of the 2008 version of Section 54.02, Family Code

iv
 INDEX OF AUTHORITIES
CASES PAGE

Bannister v. State,
552 S.W.2d124 (Tex. Crim. App. 1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Broadway v. Beto,
338 F.Supp. 827 (N.D. Tex. 1971),
affirmed for the reasons stated 459 F.2d 483 (5th Cir. 1972),
cert. denied 409 U.S. 1012 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Doggett v. United States,
505 U.S. 647 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ex parte Young,
213 S.W.3d 327 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Grayless v. State,
567 S.W.2d 216 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ibarra v. State,
11 S.W.3d 189 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In re Gault,
387 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re N.J.A.,
997 S.W.2d 554 (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14, 17

In re N.M.P.,
969 S.W.2d 95 (Tex. App.--Amarillo 1998, no pet.). . . . . . . . . . . . . . . . 8, 11

In re P.B.C.,
538 S.W.2d 448 (Tex. Civ. App.--El Paso 1976, no writ). . . . . . . . . . . . . . 9

Johnson v. State,
58 S.W. 60 (1900). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

v
Jones v. State,
803 S.W.2d 712 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . 15-16

Meshell v. State,
739 S.W.2d 246 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . . . . . . . 12-15

Miller v. State,
981 S.W.2d 447 (Tex. App.--Texarkana 1998, pet. ref’d). . . . . . . . . . . . . . . 6

Moore v. State,
446 S.W.3d 47 (Tex. App.--Houston [1st Dist.] 2014, pet. granted). . . . . 7, 8

Pratt v. State
Nos. 14-99-00162-CR, 14-99-00163-CR, 2000 WL 963530
(Tex. App--Houston [14th Dist.] July 13, 2000, no pet.)
(not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Spence v. State,
795 S.W.2d 743 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Condran,
977 S.W.2d 144 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . 15-17

State v. Krizan-Wilson,
321 S.W.3d 619 (Tex. App.--Houston [14th Dist.] 2010),
aff’d 354 S.W.3d 808 (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . 8

State v. Krizan-Wilson,
354 S.W.3d 808 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . 11, 18

State v. Maynard,
No. 89786-7, 2015 WL 3413327 (Wash. May 28, 2015).. . . . . . . . . . . . . 6, 9

State v. Salavea,
86 P.3d 125 (Wash. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vi
State v. Walls,
775 N.E.2d 829 (Ohio 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. White,
306 S.W.3d 753 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State v. Williams,
938 S.W.2d 456 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . 15-16

United States v. Crouch,
84 F.3d 1497 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Lovasco,
431 U.S. 783 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Marion,
404 U.S. 307 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONSTITUTIONS

United States Constitution
amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Texas Constitution
Article II, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article V, § 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Article V, § 31(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vii
STATUTES

Code of Criminal Procedure
Article 2.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Article 4.18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article 12.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
Article 62.101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Chapter 62, Subchapter H. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Family Code
Section 51.01.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 51.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 51.04.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 53.04.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-11
Section 53.045.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 54.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Penal Code
Section 8.07.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6
Section 12.32.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 22.021.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

OTHER AUTHORITY

Robert Dawson, Texas Juvenile Justice Department,
Texas Juvenile Law (8th ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

viii
 NO. PD-1634-14

IN THE COURT OF CRIMINAL APPEALS
STATE OF TEXAS

AARON JACOB MOORE, Appellant

VS.

STATE OF TEXAS, Appellee

No. 01-13-00663-CR
IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

CAUSE NO. 12-DCR-059791
IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS

STATE'S BRIEF ON THE MERITS

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

In construing the limited jurisdiction of the juvenile court and transfer

provision in Family Code, Section 54.02(j)(4)(A), a panel of the court of appeals,

analogized “the state” “to the Brady v. Maryland line of cases,” and found that the

“the State did not adduce a reason beyond its control for failing to proceed in juvenile

court” before Appellant turned eighteen. Moore v. State, 446 S.W.3d 47, 49 (Tex.

ix
App.--Houston [1st Dist.] 2014). The court vacated the judgment for aggravated

sexual assault, a first degree felony with no statute of limitations, and dismissed this

case for want of jurisdiction without considering whether there was unconstitutional

oppressive investigatory delay. Id. at 52. On November 13, 2014, the court denied

the State’s motion for rehearing en banc.

On April 22, 2015, this Court granted the State’s second question for review.

The State’s brief on the merits is due on June 8, 2012, on an extended deadline.

STATEMENT REGARDING ORAL ARGUMENT

The Court denied oral argument.

GRANTED QUESTION FOR REVIEW

The Court granted the State’s second question for review:

Does the court of appeals’s construction of “the state” in Section
54.02(j)(4)(A), Family Code require dismissal of a case with prejudice
without consideration of the factors for oppressive delay in violation of
the separation of powers doctrine?

x
 STATEMENT OF FACTS

On September 19, 2008, twelve-year-old E.W. outcried to her mother that her

cousin, Appellant had “stuck his penis in my behind,” and that she was nine-years-old

when he started doing so. [2 RR 23, 24, 25, 34] E.W.’s mother immediately took

E.W. to Texas Children’s emergency room for a SANE exam and to the Children’s

Advocacy Center (“CAC”) for a forensic interview. [2 RR 63, 64]

The case was assigned to Fort Bend County Sheriff’s Detective Cox who

attempted to speak with Appellant; however, his mother would not allow him to come

to the Sheriff’s Office alone. [1 RR 97-98] Appellant’s mother wanted Appellant’s

uncle to be present during the interview, thus Det. Cox did not have an opportunity

to do a forensic interview. [1 RR 98] Det. Cox attended the CPS interview with

Appellant, during which Appellant denied the allegations. [1 RR 102] The CPS

interview was very short, and Det. Cox formed no opinion about Appellant’s

credibility. [1 RR 102, 103]

Det. Cox testified that she did not personally obtain Appellant’s birth date

during the course of her investigation, but went by the “initial report,” which was

based on the CPS referral received by the Sheriff’s Office. [1 RR 68] Appellant’s

birth date was typed by the Sheriff’s Office administrative staff into the report as July

11, 1993, one year younger than Appellant’s actual birth date of July 11, 1992. [1 RR

1
69, 70, 72] Det. Cox testified that if the CPS and medical records had a different

birth date than her initial report, she did not use the records to verify Appellant’s birth

date, but “to make sure that everything’s consistent as far as an outcry for a victim.”

[1 RR 71]

Still believing that Appellant was seventeen, Det. Cox filed this case with the

district attorney’s office on July 22, 2010, eleven days after Appellant had already

turned eighteen. [1 RR 71, 72]

Det. Cox testified that it was not unusual for a case like Appellant’s to take

two-years to investigate and file because at that time she was the only detective

handling a caseload of 468 CPS cases. [1 RR 72-73] Det. Cox’s caseload lightened

somewhat in 2009 to 330 cases, and again in 2010 to 195 cases, as more detectives

were assigned, and the detectives were split into child abuse and family violence

units. [1 RR 73-74] Det. Cox testified that her high caseload was due to budget

issues and the decisions of the Commissioner’s Court. [1 RR 74] At the time of her

testimony at the transfer hearing, Det. Cox had an active caseload of thirty-two cases.

[1 RR 75]

Det. Cox testified that if she had known Appellant was a year older, she would

have filed his case as soon as she could given all the other victims she had to work

with. [1 RR 75] Det. Cox explained, “[O]f the 468 cases, if I have a suspect

2
immediately in contact with that victim where they’re in the same house, it’s a father,

a mother, a brother and they’re in immediate danger, I have to take that case first.

There’s numerous cases that come in like that.”1 [1 RR 92] While the charges

against Appellant were serious, Appellant was not an immediate family member

residing in the same house with E.W. [1 RR 92]

Det. Cox testified that Appellant’s case was not immediately filed because she

“did not have all the records and everything right.” [1 RR 80] Det. Cox testified that

she received E.W.’s therapy records from Jeanette Holland at the Christian

Counseling Centers and the SANE records from Texas Children’s Hospital in June

2009. [1 RR 92-93] On July 6, 2010, Det. Cox conducted a follow-up interview with

E.W.’s mother regarding her concerns regarding information in the CPS report about

E.W.’s disabled sister. [1 RR 93-94, 2 RR 60] During this second interview, Det.

Cox took photos of the house where the alleged last incident occurred. [1 RR 94]

There was no testimony showing that the two-year investigatory delay in filing

this case was unconstitutionally oppressive.

1
The Code of Criminal Procedure, Article 2.27(a), requires investigation
within twenty-four hours of such cases. Tex. Code Crim. Proc. art. 2.27(a) (West
2008).

3
 SUMMARY OF THE ARGUMENT

When a case is filed after the juvenile turns eighteen, Section 54.02(j)(4)(A),

Family Code authorizes a juvenile court to transfer a case where the State proves by

a preponderance of the evidence that the case could not be filed earlier because of

“a reason beyond the control of the state.” In this case, the investigating law

enforcement agency filed the case after Appellant turned eighteen. The court of

appeals analogized “the state” to the Brady line of cases, thus lumping the

investigating agency in with the prosecution, and concluded that the State failed to

prove a reason beyond its control.

Before ordering the transfer of this case to district court, the juvenile court

carefully considered whether there was unconstitutional oppressive investigatory

delay in filing the petition. However, unlike the juvenile court, the court of appeals

vacated the judgment in this case without first considering whether the delay was

unconstitutionally oppressive.

Under the terms of Section 54.02(j)(4)(A), if the State were to fail in its proof,

the case would never be prosecuted, i.e., the case is dismissed with prejudice, without

a determination of whether there was unconstitutional oppressive investigatory delay.

Thus, Section 54.02(j)(4)(A) encroaches on the constitutional duty of district and

county attorneys to prosecute cases and violates the Separation of Powers Clause.

4
 ARGUMENT

A. The court of appeals combined the investigatory function of law
enforcement agencies with the litigation function of the
prosecution in construing “the state” for the purposes of Family
Code, Section 54.02(j)(4)(A).

Appellant last penetrated E.W.’s anus when he was sixteen years old. [1 RR

72; 2 RR 23, 25, 26] This offense is a first degree felony that has no statute of

limitation and was referred for prosecution after Appellant turned eighteen years old.

Tex. Pen. Code §§ 22.021 & 12.32 (West 2008); Tex. Code Crim. Proc. 12.01(1)(B)

(West 2008), 1 RR 72.

The Family Code provides the juvenile court with exclusive jurisdiction over

proceedings involving a child who is “(A) ten years of age or older and under 17

years of age; (B) or seventeen years of age or older and under 18 years of age who is

alleged or found to have engaged in delinquent conduct or conduct indicating a need

for supervision as a result of acts committed before becoming 17 years of age.” Tex.

Fam. Code §§ 51.02(2) & 51.04(a) (West 2008).

Section 8.07, Penal Code, provides in pertinent part that “a person may not be

prosecuted for or convicted of any offense committed before reaching 17 years of

age,” except for certain offenses committed when the person is younger than 15 years

5
of age, “[u]nless the juvenile court waives jurisdiction2 under Section 54.02, Family

Code, and certifies the individual for criminal prosecution.” Tex. Pen. Code §8.07

(West 2008).

Before a person turns eighteen, the Juvenile Code provides the State with

discretion to file one of three types of petitions in a first degree felony case like

aggravated sexual assault: (1) a petition for an adjudication hearing; (2) a petition for

a determinate sentence, to be returned by a grand jury; and (3) a petition for a transfer

(to district court) hearing. See Tex. Fam. Code §§ 53.04, 53.045, 54.02(a) (West

2008); Robert O. Dawson, Texas Juvenile Law 565 (8th ed. 2012). Once the person

turns eighteen, the Juvenile Code limits the Court to transferring the case to district

court under certain circumstances or do nothing, i.e., dismiss the case with prejudice.

Tex. Fam. Code § 54.02(j); In re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999).

Here, the District Attorney’s Office received the case after Appellant had

2
However, this jurisdiction to transfer may itself be waived under Article
4.18, Code of Criminal Procedure, if the defendant fails to file “a written motion in
bar of prosecution.” Tex. Code Crim. Proc. art. 4.18(a) & (d) (West 2008). Article
4.18 became effective January 1, 1996, and cases like Bannister v. State, 552 S.W.2d
124, 125 (Tex. Crim. App. 1977) (reversing a conviction on the basis of the
defendant’s true age), are thus overruled by statute. See, Pratt v. State, Nos, 14-99-
00162-CR, 14-99-00163-CR, 2000 WL 963530, at *2-*3 (Tex. App.--Houston [14th
Dist.] July 13, 2000, no pet.) (not designated for publication, citing Miller v. State,
981 S.W.2d 447 (Tex. App.--Texarkana 1998, pet. ref’d)). Since “jurisdiction” may
be waived, a juvenile court’s “exclusive original jurisdiction” may be more properly
understood as authority. See State v. Maynard, No. 89786-7, 2015 WL 3413327, at
*4 (Wash. May 28, 2015).

6
turned eighteen and proceeded under Section 54.02(j)(4)(A), which provides for the

transfer of a person to district court if the person is eighteen years of age or older and

“the juvenile court finds from a preponderance of the evidence that for a reason

beyond the control of the state it was not practicable to proceed in juvenile court

before the 18th birthday of the person.” Tex. Fam. Code § 54.02(j)(4)(A) (West

2008). A copy of the 2008 version of Section 54.02 is attached hereto as Appendix

A.

In considering whether the juvenile court had jurisdiction to transfer this case,

the court of appeals analogized “the state” to the Brady line of cases where law

enforcement and the prosecution are viewed as one entity. Moore v. State, 446

S.W.3d 47, 52 (Tex. App.--Houston [1st Dist.] 2014). Therefore, the investigatory

delays at the Sheriff’s Office in filing this case after Appellant’s eighteenth birthday,

were attributed to the prosecution. Moore, 446 S.W.3d at 52.

Under the court of appeals construction, even when there is justifiable

investigatory delay, the State must dismiss its case despite there being no statute of

limitation for aggravated sexual assault. Tex. Fam. Code § 54.02(j)(4)(A); Tex. Code

Crim. Proc. art. 12.01(1)(B).

7
 B. The court of appeals failed to consider whether the investigatory
delay was oppressive before vacating the judgment.

Because it viewed the Sheriff’s Office and the District Attorney’s Office as one

entity, the court of appeals found that investigatory delays at the Sheriff’s Office were

“not reasons beyond the State’s control.” Moore, 446 S.W.3d at 52.

The record shows that before deciding to waive jurisdiction and transfer this

case, the juvenile court carefully considered the cases tendered by the State3 that

discussed unconstitutional investigatory and pre-indictment delay. [2 RR 105, United

States v. Lovasco, 431 U.S. 783 (1977) (no Due Process violation when law

enforcement did little to investigate case in seventeen-month delay); State v. White,

306 S.W.3d 753 (Tex. Crim. App. 2010) (seventeen-year delay in murder case by law

enforcement not unconstitutional); State v. Krizan-Wilson, 321 S.W.3d 619 (Tex.

App.--Houston [14th Dist.] 2010), aff’d 354 S.W.3d 808 (Tex. Crim. App. 2011)

(twenty-three-year delay by the prosecution not unconstitutional); and In re N.M.P.,

969 S.W.2d 95 (Tex. App.--Amarillo 1998, no pet.) (nine-year delay by law

enforcement, who had no probable cause until DNA testing identified N.M.P., was

not unconstitutional)]

Unlike the juvenile court, the court of appeals did not consider whether there

3
The State tendered a copy of these cases to opposing counsel at the same
time. [2 RR 105]

8
was unconstitutional oppressive investigatory delay. Moore, 446 S.W.3d at 52.

C. The Due Process Clause protects juvenile offenders from
oppressive investigatory delay in the prosecution of their cases.

A person has no constitutional right to be tried as a juvenile. In re P.B.C., 538

S.W.2d 448, 452 (Tex. Civ. App.--El Paso 1976, no writ) (citing Broadway v. Beto,

338 F.Supp. 827, 840 (N.D. Tex. 1971), affirmed for the reasons stated 459 F.2d 483

(5th Cir. 1972), cert. denied 409 U.S. 1012 (1972)). However, juvenile court offers

a person important benefits, e.g., avoiding the stigma of an adult criminal conviction,

less harsh penalties, and private or no sex offender registration under Chapter 62,

Code of Criminal Procedure.4 See In re Gault, 387 U.S. 1, 22-24 (1967); State v.

Maynard, No. 89786-7, 2015 WL 3413327, at *3 (Wash. May 28, 2015); Texas Code

of Crim. Proc. art. 62, Subchapter H. (West 2008). Loss of these rights is generally

prejudicial to a person.

The Due Process Clause of the Fifth Amendment “always protects defendants

4
Where, as here, a person is charged with aggravated sexual assault, the
loss of private or even no sex offender registration may be of great concern. If a
person is transferred to district court, the law still is less harsh, and if convicted, the
person shall be required to register for a maximum of ten years. Tex. Code Crim.
Proc. art. 62.101(b) (West 2008). The vagary of Section 54.02(j) is illustrated by this
case. If E.W. had suffered Appellant’s assaults for two more years and outcried after
he turned eighteen, the State would have been able to transfer Appellant to district
court under Section 54.02(j)(4)(B)(i) (West 2008), because it would not have had
probable cause to proceed before Appellant’s eighteenth birthday. The arguments
herein would have been unnecessary.

9
against fundamentally unfair treatment by the government in criminal proceedings.”

Doggett v. United States, 505 U.S. 647, 666 (1992). This protection extends to

oppressive investigatory delay. United States v. Marion, 404 U.S. 307, 324 (1971).

However, “[p]roof of prejudice is generally a necessary, but not sufficient

element of a due process claim.” United States v. Lovasco, 431 U.S. 783, 790 (1977).

Delay between the commission of the offense and the initiation of prosecution, must

be considered in light of “the reasons for the delay as well as the prejudice to the

accused.” Id. An indictment that was delayed for further investigation should be

dismissed only when the delay “violates those fundamental conceptions of justice

which lie at the base of our civil and political institutions, and which define the

community’s sense of fair play and decency.” Id. (citations and internal quotations

omitted).

With regard to the due process test for pre-indictment delay, this Court “has

followed the Fifth Circuit's bright-line methodology5 in holding that, to be entitled to

relief, a defendant must demonstrate that the delay: (1) caused substantial prejudice

5
Referring to United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir.
1996). The Crouch test follows verbatim the Supreme Court’s pronouncement in
United States v. Marion, 404 U.S. 307 (1971), “[T]he Due Process Clause of the Fifth
Amendment would require dismissal of the indictment if it were shown at trial that
the preindictment delay in this case caused substantial prejudice to appellee's rights
to a fair trial and that the delay was an intentional device to gain tactical advantage
over the accused.” Id. at 324.

10
to his right to a fair trial, and (2) was an intentional device used to gain a tactical

advantage over the accused.” State v. Krizan-Wilson, 354 S.W.3d 808, 814-15 (Tex.

Crim. App. 2011) (no violation in pre-indictment delay); Ibarra v. State, 11 S.W.3d

189, 193 (Tex. Crim. App. 1999) (no violation in investigative delay; “We are

unaware of any requirement that the police conduct continuous investigation”).

In In re N.M.P., 969 S.W.2d 95, 101-02 (Tex. App.--Amarillo 1998), the El

Paso Court of Appeals applied this due process test in a juvenile case, albeit under a

different section of the Family Code. Id. at 101-02 (decided under Section 53.04,

requiring a petition or hearing “as promptly as practicable”).

The Washington Supreme Court applies the test set forth in Lovasco to cases

involving crimes committed by juveniles and requires the defendant to first produce

evidence demonstrating that the delay has caused actual prejudice to his defense. See,

e.g., State v. Salavea, 86 P.3d 126, 131 (Wash. 2004).

The Ohio Supreme Court also applies the Lovasco due process test in cases

where the offense was committed by a juvenile and requires the defendant to first

present “evidence establishing substantial prejudice.” See, e.g., State v. Walls, 775

N.E.2d 829, 845 (Ohio 2002).

This Court applied the adult due process test for a speedy trial violation in a

case involving an offense committed by a juvenile in Grayless v. State, 567 S.W.2d

216, 220-22 (Tex. Crim. App. 1978).

11
 To date, the State has found no case holding that the adult due process tests

cannot or should not be used in cases involving offenses committed by a juvenile.

D. The Texas Constitution explicitly provides for the separation of
governmental powers. The Legislature encroached on the duty
of the District Attorney to prosecute cases by requiring dismissal
with prejudice without first considering whether the delay was
unconstitutional.

The Texas Constitution explicitly provides for the separation of the powers of

government into three distinct departments:

Sec. 1. The powers of the Government of the State of Texas shall be
divided into three distinct departments, each of which shall be confided
to a separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another, and those which are Judicial
to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the
others, except in the instances herein expressly permitted.

Tex. Const. art. II, § 1.

Article 5, Section 21, of the Texas Constitution establishes “[t]he office of

county attorney, as well as district and criminal district attorney.” Meshell v. State,

739 S.W.2d 246, 253 (Tex. Crim. App. 1987); Tex. Const. art. V, § 21. “[O]ur courts

have long recognized” that the primary function of district and county attorneys is “to

prosecute the pleas of the state in criminal cases.” Meshell, 739 S.W.2d at 254.

12
 1. The Texas Constitution authorizes the Legislature to make
procedural rules for the government of the courts; not
substantive rights.

This Court has recognized that the Texas Constitution provides the Legislature

with “complete authority to pass any law regulating the means, manner, and mode of

assertion of any of [a defendant’s] rights in the court.” Meshell, 739 S.W.2d at 255

(quoting Johnson v. State, 58 S.W. 60, 71 (1900)). This authority is presently

embodied in Article V, Section 31(a):

(a) The Supreme Court is responsible for the efficient administration
of the judicial branch and shall promulgate rules of administration not
inconsistent with the laws of the state as may be necessary for the
efficient and uniform administration of justice in the various courts.

Tex. Const. art. V, § 31(a).

A prerequisite to the Legislature’s power to act under Article V, [§
31(a)], however, is the existence of a right for which the legislature can
provide procedural guidelines. Were it otherwise, the procedural
legislation would itself create a substantive “right,” and exceed the grant
of power in Article V, [§ 31(a)], supra, thereby encroaching upon
another department.

Meshell, 739 S.W.2d at 255.

In determining whether the Legislature has exceeded its grant of power, this

Court has looked to whether the statute is directed to providing procedural guidelines

to effect a substantive right or is focused on the prosecutorial function. See, e.g.,

Meshell, 739 S.W.2d at 255 (Speedy Trial Act is “directed at speeding the

prosecutor’s preparation and ultimate readiness for trial” rather than “providing

13
procedural guidelines for the speedy commencement of trial”).

2. Rather than providing guidelines for the speedy filing of a
petition, Section 54.02(j)(4)(A) is directed at speeding up
the state’s filing of a petition without regard to
investigatory delay.

In Section 54.02(j)(4)(A), the Legislature provided the juvenile court with the

limited jurisdiction to transfer a case to district court when a juvenile is eighteen years

or older. In re N.J.A., 997 S.W.2d at 556 (construing Tex. Fam. Code § 54.02(j)).

It did not provide the juvenile court with the power to adjudicate a juvenile who is

eighteen years or older. Id. Thus, if the conditions for transfer are not met, the

juvenile court can do nothing with the case, and the delinquent conduct is effectively

dismissed with prejudice. The defendant is granted a bonanza right not to be

prosecuted for, in this case, a first degree felony offense with no statute of limitations,

when there was no constitutional violation of his rights.

In Meshell, this Court held that the Speedy Trial Act violated the separation of

powers doctrine by setting a deadline after which a case would be dismissed with

prejudice. Meshell, 739 S.W.2d at 257. Like “for a reason beyond the control of the

state” in Section 54.02(j)(4)(A), Article 32A.02 provided exceptions for when a delay

would not require dismissal. Meshell, 739 S.W.2d at 251.

This Court noted that “our courts have long recognized” that the primary

function of district and county attorneys is “to prosecute the pleas of the state in

14
criminal cases”and held:

An obvious corollary to a district or county attorney's duty to prosecute
criminal cases is the utilization of his own discretion in the preparation
of those cases for trial. Therefore, under the separation of powers
doctrine, the Legislature may not remove or abridge a district or county
attorney's exclusive prosecutorial function, unless authorized by an
express constitutional provision.

Meshell, 739 S.W.2d at 254-55.

This Court further found that in failing to incorporate the factors for a speedy

“commencement of trial” in the statute, the Legislature deprived the prosecutor “of

his exclusive prosecutorial discretion in preparing for trial without any consideration

for the factors used to determine whether appellant has been deprived of his

constitutional right to a speedy trial.” Meshell, 739 S.W.2d at 256.

In Ex parte Young, 213 S.W.3d 327 (Tex. Crim. App. 2006), this Court adopted

the dissenting opinion of Presiding Judge Keller in State v. Condran, 977 S.W.2d 144

(Tex. Crim. App. 1998). Ex parte Young, 213 S.W.3d at 331. In Condran, Presiding

Judge Keller observed:

The lesson drawn from Meshell, Jones,6 and Williams7 is that a

6
Jones v. State, 803 S.W.2d 712 (Tex. Crim. App. 1991) (upholding
Article 17.151, distinguishing release on bond from setting aside a prosecution as in
Meshell).
7
State v. Williams, 938 S.W.2d 456, 458 (Tex. Crim. App. 1997)
(upholding the Interstate Agreement on Detainers Act as a contractual arrangement
by which the prosecutor “relinquished some of his power in exchange for the benefit

15
 legislatively imposed deadline for prosecutorial action violates the
Separation of Powers Clause if

(1) the remedy for failing to meet the deadline seriously disrupts the
prosecutor's ability to perform his duties,

(2) the deadline cannot be justified as necessary to effectuate a superior
constitutional interest, and

(3) the prosecutor did not contractually submit to the deadline.

In Jones, condition (1) was not true because the remedy of releasing the
prisoner on bail did not seriously disrupt the prosecutor's ability to
perform his duties. In Williams, condition (3) was not true because the
prosecuting authorities had submitted to the deadline by requesting a
prisoner under the IADA. But in Meshell, all three of these conditions
were true. The remedy for a violation of the Speedy Trial Act was
dismissal with prejudice—a remedy which necessarily causes a serious
disruption in a prosecutor's ability to perform his duties by conclusively
terminating the prosecution. The only constitutional interest arguably
involved, the right to a speedy trial, was not effectuated by the Speedy
Trial Act because the Barker factors were not included. And, the
prosecuting authorities did not contractually submit to the deadlines
established.

Condran, 977 S.W.2d at 146 (Keller, P.J., dissenting).

3. Section 54.02(j)(4)(A) deprives the prosecutor of his
exclusive prosecutorial discretion in preparing for trial in
violation of the Separation of Powers Clause.

Here, like Meshell, all three of the conditions for a separation of powers

violation are true.

First, if the conditions for transferring the case to district court are not met, the

of obtaining custody of the out-of-state prisoner.”).

16
remedy is dismissal with prejudice. In re N.J.A., 997 S.W.2d at 556. Dismissal with

prejudice “necessarily causes a serious disruption in a prosecutor’s ability to perform

his duties by conclusively terminating the prosecution.” Condran, 977 S.W.2d at 146

(Keller, P.J., dissenting).

Second, Section 54.02(j)(4)(A) is directed to setting deadlines on the

prosecution of a case; it does not insure the constitutional interest of being free from

oppressive investigatory delay.

Third, “the prosecuting authorities did not contractually submit to the deadlines

established.” Condran, 977 S.W.2d at 146 (Keller, P.J., dissenting).

This Court should find that because Section 54.02(j)(4)(A) does not incorporate

the factors for oppressive investigatory delay in dismissing a petition, the statute

encroaches on the duties of the district and county attorneys to prosecute criminal

cases in violation of the Separation of Powers Clause.

“[T]o provide for the protection of the public and public safety” is the first

purpose of the Juvenile Justice Code. Tex. Fam. Code § 51.01(1) (West 2008). The

District Attorney’s exclusive prosecutorial discretion in preparing for a case should

not be usurped without consideration of the established factors for determining

unconstitutional oppressive investigatory delay.

17
 E. The undisputed evidence shows that the delay was not an
intentional device used to gain a tactical advantage over the
accused and no Due Process violation is shown.

“[A] defendant must demonstrate that the delay: (1) caused substantial

prejudice to his right to a fair trial, and (2) was an intentional device used to gain a

tactical advantage over the accused.” Krizan-Wilson, 354 S.W.3d at 814-15.

In this case, the delay in filing the case caused Appellant to lose the benefits

of juvenile court. But even if the delay thus caused substantial prejudice to

Appellant, the delay still must be shown to have been an intentional device used to

gain a tactical advantage over Appellant. See Spence v. State, 795 S.W.2d 743, 750

(1990) (no error in denying motion to dismiss the indictment because while Spence

showed preindictment delay, he failed “to show that it was intentional delay designed

to give the State a tactical advantage over him”).

The undisputed evidence shows that after E.W. outcried, her mother did

everything she could to document and report this case--E.W. had a SANE exam and

a CAC interview the day she outcried. [2 RR 63-64]

This case was assigned to Sheriff’s Det. Cox, who at the time handled all CPS

cases and had a pending caseload of 468 cases while also handling newly reported

cases of a priority nature because the perpetrator is a caregiver and resides in the same

home. [1 RR 73, 92] Det. Cox testified that given her caseload, it was not unusual

for an investigation to last two-years. [1 RR 72-73]

18
 Appellant denied E.W.’s allegations. [1 RR 102]

E.W. outcried three weeks after Appellant last assaulted her, and her SANE

exam revealed no physical evidence of the assault. [1 RR 95-96] This was a he said-

she said case about a continuing aggravated assault over the course of three years and

was deserving of additional investigation. A two-year investigative delay in these

circumstances is not oppressive or unconstitutional.

Aggravated sexual assault has no statute of limitations. Tex. Code Crim. Proc.

art. 12.01(1)(B). It is a first degree felony offense, subject to punishment for five to

ninety-nine years or life imprisonment and up to a $10,000 fine. Tex. Pen. Code §§

22.021(e) & 12.32 (West 2008). Under the Juvenile Justice Code, a person

committing such a serious offense may be transferred to district court when the

person is just fifteen years of age. Tex. Fam. Code § 54.02(a)(1)(2)(A) (West 2008).

These statutes show that the Legislature intended that victims of aggravated sexual

assault should be heard and perpetrators punished.

This Court should find that there is no oppressive investigatory delay, reverse

the judgment of the court of appeals, and affirm the judgment of the district court.

19
 PRAYER

The State prays that the Court will find that Section 54.02(j)(4)(A), Family

Code violates the Separation of Powers Clause and is unconstitutional, find there was

no oppressive investigatory delay, reverse the judgment of the court of appeals, and

affirm the judgment of the juvenile court.

Respectfully submitted,

John F. Healey
SBOT # 09328300
District Attorney, 268th Judicial District
Fort Bend County, Texas

/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
SBOT #11395400
Assistant District Attorney
301 Jackson Street
Richmond, Texas 77469
(281) 341-4460 / (281) 238-3340 (fax)
Gail.McConnell@fortbendcountytx.gov

Counsel for the State

CERTIFICATE OF COMPLIANCE

I hereby certify that the State’s brief in total through the prayer is 6,131 words,
which is less than the 15,000 word limit for a brief on the merits.

/s/ Gail Kikawa McConnell
Gail Kikawa McConnell

20
 CERTIFICATE OF SERVICE

I hereby certify that a copy of the State's brief on the merits was served by the
electronic filing manager or by email June 8, 2015, on Ms. Carmen Roe, Attorney for
Appellant, , and on Ms. Lisa McMinn, State Prosecuting
Attorney, .

/s/ Gail Kikawa McConnell
Gail Kikawa McConnell

21
Appendix A
V.T.C.A., Family Code § 54.02 Page 1

Effective:[See Text Amendments] to August 31, 2009

Vernon's Texas Statutes and Codes Annotated
Family Code
Title 3. Juvenile Justice Code
Chapter 54. Judicial Proceedings
§ 54.02. Waiver of Jurisdiction and Discretionary Transfer to Criminal Court

(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district
court or criminal district court for criminal proceedings if:

(1) the child is alleged to have violated a penal law of the grade of felony;

(2) the child was:

(A) 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capit-
al felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication
hearing has been conducted concerning that offense; or

(B) 15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a
felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted
concerning that offense; and

(3) after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe
that the child before the court committed the offense alleged and that because of the seriousness of the offense
alleged or the background of the child the welfare of the community requires criminal proceedings.

(b) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satis-
fied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to
criminal court.

(c) The juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal pro-
ceedings.

(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation,
and full investigation of the child, his circumstances, and the circumstances of the alleged offense.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 54.02 Page 2

(e) At the transfer hearing the court may consider written reports from probation officers, professional court em-
ployees, or professional consultants in addition to the testimony of witnesses. At least one day prior to the trans-
fer hearing, the court shall provide the attorney for the child with access to all written matter to be considered by
the court in making the transfer decision. The court may order counsel not to reveal items to the child or his par-
ent, guardian, or guardian ad litem if such disclosure would materially harm the treatment and rehabilitation of
the child or would substantially decrease the likelihood of receiving information from the same or similar
sources in the future.

(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other
matters:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given
to offenses against the person;

(2) the sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by
use of procedures, services, and facilities currently available to the juvenile court.

(g) If the petition alleges multiple offenses that constitute more than one criminal transaction, the juvenile court
shall either retain or transfer all offenses relating to a single transaction. A child is not subject to criminal pro-
secution at any time for any offense arising out of a criminal transaction for which the juvenile court retains jur-
isdiction.

(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certi-
fy its action, including the written order and findings of the court, and shall transfer the person to the appropriate
court for criminal proceedings and cause the results of the diagnostic study of the person ordered under Subsec-
tion (d), including psychological information, to be transferred to the appropriate criminal prosecutor. On trans-
fer of the person for criminal proceedings, the person shall be dealt with as an adult and in accordance with the
Code of Criminal Procedure. The transfer of custody is an arrest.

(i) A waiver under this section is a waiver of jurisdiction over the child and the criminal court may not remand
the child to the jurisdiction of the juvenile court.

(j) The juvenile court may waive its exclusive original jurisdiction and transfer a person to the appropriate dis-
trict court or criminal district court for criminal proceedings if:

(1) the person is 18 years of age or older;

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 54.02 Page 3

(2) the person was:

(A) 10 years of age or older and under 17 years of age at the time the person is alleged to have committed a
capital felony or an offense under Section 19.02, Penal Code;

(B) 14 years of age or older and under 17 years of age at the time the person is alleged to have committed an
aggravated controlled substance felony or a felony of the first degree other than an offense under Section
19.02, Penal Code; or

(C) 15 years of age or older and under 17 years of age at the time the person is alleged to have committed a
felony of the second or third degree or a state jail felony;

(3) no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the
offense has been conducted;

(4) the juvenile court finds from a preponderance of the evidence that:

(A) for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the
18th birthday of the person; or

(B) after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birth-
day of the person because:

(i) the state did not have probable cause to proceed in juvenile court and new evidence has been found
since the 18th birthday of the person;

(ii) the person could not be found; or

(iii) a previous transfer order was reversed by an appellate court or set aside by a district court; and

(5) the juvenile court determines that there is probable cause to believe that the child before the court commit-
ted the offense alleged.

(k) The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satis-
fied, and the summons must state that the hearing is for the purpose of considering waiver of jurisdiction under
Subsection (j) of this section.

(l) The juvenile court shall conduct a hearing without a jury to consider waiver of jurisdiction under Subsection

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 54.02 Page 4

(j) of this section.

(m) Notwithstanding any other provision of this section, the juvenile court shall waive its exclusive original jur-
isdiction and transfer a child to the appropriate district court or criminal court for criminal proceedings if:

(1) the child has previously been transferred to a district court or criminal district court for criminal proceed-
ings under this section, unless:

(A) the child was not indicted in the matter transferred by the grand jury;

(B) the child was found not guilty in the matter transferred;

(C) the matter transferred was dismissed with prejudice; or

(D) the child was convicted in the matter transferred, the conviction was reversed on appeal, and the appeal
is final; and

(2) the child is alleged to have violated a penal law of the grade of felony.

(n) A mandatory transfer under Subsection (m) may be made without conducting the study required in discre-
tionary transfer proceedings by Subsection (d). The requirements of Subsection (b) that the summons state that
the purpose of the hearing is to consider discretionary transfer to criminal court does not apply to a transfer pro-
ceeding under Subsection (m). In a proceeding under Subsection (m), it is sufficient that the summons provide
fair notice that the purpose of the hearing is to consider mandatory transfer to criminal court.

(o) If a respondent is taken into custody for possible discretionary transfer proceedings under Subsection (j), the
juvenile court shall hold a detention hearing in the same manner as provided by Section 54.01, except that the
court shall order the respondent released unless it finds that the respondent:

(1) is likely to abscond or be removed from the jurisdiction of the court;

(2) may be dangerous to himself or herself or may threaten the safety of the public if released; or

(3) has previously been found to be a delinquent child or has previously been convicted of a penal offense
punishable by a term of jail or prison and is likely to commit an offense if released.

(p) If the juvenile court does not order a respondent released under Subsection (o), the court shall, pending the
conclusion of the discretionary transfer hearing, order that the respondent be detained in:

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Family Code § 54.02 Page 5

(1) a certified juvenile detention facility as provided by Subsection (q); or

(2) an appropriate county facility for the detention of adults accused of criminal offenses.

(q) The detention of a respondent in a certified juvenile detention facility must comply with the detention re-
quirements under this title, except that, to the extent practicable, the person shall be kept separate from children
detained in the same facility.

(r) If the juvenile court orders a respondent detained in a county facility under Subsection (p), the county sheriff
shall take custody of the respondent under the juvenile court's order. The juvenile court shall set or deny bond
for the respondent as required by the Code of Criminal Procedure and other law applicable to the pretrial deten-
tion of adults accused of criminal offenses.

CREDIT(S)

Acts 1973, 63rd Leg., p. 1460, ch. 544, § 1, eff. Sept. 1, 1973. Amended by Acts 1975, 64th Leg., p. 2156, ch.
693, § 16, eff. Sept. 1, 1975; Acts 1987, 70th Leg., ch. 140, §§ 1 to 3, eff. Sept. 1, 1987; Acts 1995, 74th Leg.,
ch. 262, § 34, eff. Jan. 1, 1996; Acts 1999, 76th Leg., ch. 1477, § 8, eff. Sept. 1, 1999.

Melendez v. State, 4 S.W.3d 437 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (failure to notify consular of-
ficer that national arrested not a jurisdictional defect in certification proceedings)

In re N.M.P., 969 S.W.2d 95 (Tex. App.--Amarillo 1999, no pet.) (novelty of DNA testing in 1988 justified
delay in certification proceedings)

In re D.L.J., 981 S.W.2d 815 (Tex. App.--Houston [1st Dist.] 1998, no writ) (conducting hearing without
counsel reversible)

In re J.C.C., 952 S.W.2d 47 (Tex. App.--San Antonio 1997, no writ) (due diligence not shown for post-18 year
old certification proceedings)

Brosky v. State, 915 S.W.2d 120 (Tex. App.--Fort Worth 1996, review ref'd) (prosecuting for different overt
act but same conspiracy as alleged in certification petition OK)

(C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.